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Homicide

New York Penal Law Section 125.00 defines Homicide as: “Conduct which causes the death of a person or unborn child…”. There are different types and degrees of homicide depending on the circumstances and the intent of the perpetrator.

In New York, murder in the first degree is one form of homicide among others which include second-degree murder, manslaughter, criminally negligent homicide, and certain forms of abortion. Intentional murder is elevated to first-degree murder when someone 18 or older, intending to cause the death of another person, actually causes the death of that person or a third person and any one of several aggravating factors is present. Those factors address:

The circumstances in which the murder was committed (while the defendant was serving a life sentence, during the commission of a specified felony (“felony murder”), for hire, accompanied by torture, in furtherance of a terrorist act); or

The nature of the killing(s).

New York First Degree Murder laws also include first degree “felony murder” which applies in cases where the victim is killed in the course and in furtherance of, or immediate flight from, certain specific crimes which include:

Robbery;

Some degrees of burglary;

Kidnapping;

Arson;

Rape; and

Sexual abuse.

It’s distinguishable from second-degree felony murder because it requires the defendant’s intent to kill the victim or another non-participant in the crime, instead of just the intent to commit the underlying felony. Also, a person charged with first-degree felony murder must have personally caused the victim’s death or commanded another to do so unlike second-degree felony murder which requires only that a defendant be an accomplice of the actual killer.

Under New York criminal law, murder in the second degree is one of several forms of homicide, or conduct which causes the death of a person. Other forms of homicide include first-degree murder, manslaughter, criminally negligent homicide, and abortion. Pursuant to the statute, a person commits second-degree murder in one of five ways:

with the intent to cause the death of another person, he or she causes the death of such person or a third person;

under circumstances demonstrating a “depraved indifference to human life,” the defendant “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person”;

acting alone or in concert with others, the defendant commits or attempts to commit a specified felony (including robbery, burglary, kidnapping, arson, rape, and sexual abuse) and, in the course of and in furtherance of such crime or of immediate flight therefrom, he or she causes the death of a non-participant;

under circumstances demonstrating a “depraved indifference to human life,” a defendant 18 years old or more “recklessly engages in conduct which creates a grave risk of serious physical injury or death” to a person less than 11 years old and causes the death of such person; or

while in the course of committing a specified crime such as rape, a criminal sexual act or sexual abuse, a defendant 18 years old or more intentionally causes the death of a person less than 14 years old.

Depraved Indifference and Felony Murder

The second type of second-degree murder listed above – “depraved indifference” murder – is a form of reckless homicide. To convict a defendant for second-degree depraved indifference murder, the prosecution must prove – in addition to the defendant’s creation of a “grave risk of death” to another person – two distinct mens reas, or mental states: recklessness, and a “depraved indifference to human life.” Convictions for depraved indifference murder have become increasingly rare, and often involve conduct creating danger to a group of people rather than a single individual.

The third type of second-degree murder described above – “felony murder” – may alternatively be classified as a form of first-degree murder, depending on the circumstances surrounding the killing. First-degree felony murder requires the defendant’s intent to kill the victim or another non-participant in the crime, while second-degree felony murder requires only the defendant’s intent to commit one of the predicate felonies. Also, a person charged with first-degree felony murder must have personally caused the victim’s death or commanded another to do so. On the other hand, a person may be convicted of second-degree felony murder for being an accomplice of the actual killer.